O'Malley & Madden Weekly

O'Malley & Madden WeeklyWeekly

Topic of the Week

Family Medical Leave Act - What does it provide and are you protected?

The Family and Medical Leave Act (FMLA) was created to help employees balance the demands of the workplace with the needs of their families. The Act requires covered employers to provide reasonable unpaid leave to employees for certain family and medical

Blog of the Week

The #MeToo movement has helped thousands of sexual harassment victims get justice against their harassers. Unfortunately for Amy Swyear, the Seventh Circuit has yet to realize the effects of the movement.

Thought for the Week

"Employers are increasingly using non-disclosure agreements to force workers to sign away their rights to speak out about harassment. By prohibiting this practice, the EMPOWER Act will help ensure that everyone has a safe and dignified work environment."

Mitigation

If you are suing your employer or former employer you may be surprised to learn that you have an obligation to minimize (mitigate) the damages to yourself and, as a result, how much your employer will owe you. If you lost your job, you have to make a good faith effort to find an acceptable job, and if you are injured on the job, you have to seek medical treatment right away. However, you are not required to take just any job offer and being unable to work anymore will not count against you. To learn more about mitigation and your rights related to mitigation, read below:

1. What does "mitigation" mean?

Whenever anyone has a legal claim against another, they have a duty to mitigate damages. That means you have to do what you can to minimize the damages. If you are hurt in a traffic accident, you have to take reasonable steps to get your injuries treated promptly. If you refuse to get medical help, and that refusal caused your injuries to get worse, the other driver will not be liable for the injuries you could have prevented. Similarly, if a warehouse ships lemons instead of apples, the grocer has to do the best they can with the lemons to lessen the claim against the warehouse. Lemonade anyone?

2. Do I have to look for a job once I've lost mine?

Yes. In employment cases, you must make a good faith effort to reduce the money that you have lost in wages because your former employer caused you to lose your job. As a discharged worker, you have two obligations:

to make reasonable efforts to find employment; and,

to accept employment of a 'like nature,' if offered.

If the other side can convince the judge or jury that you did not do what was reasonable, you could win your case, but still be awarded only one dollar (called "nominal damages"). However, if you did reasonably look for other work, you will not be denied damages for lost wages just because your efforts were unsuccessful and even if your efforts could have been "more exhaustive."

3. How does mitigation affect the damages I can recover?

When calculating the amount of back and front pay that you can be awarded in an employment case, the court must deduct any compensation earned by working from the date of the employer's unlawful action until the date of the verdict. Also, if you are awarded compensation for loss of future earnings, the court must deduct any compensation you are likely to earn from the date of the verdict until the anticipated end of your work life.

However, just because this amount will be deducted from your damages does not mean that you will receive more money if you do not work: the mitigation doctrine requires that you make the effort.

4. How can I show that I tried to find another job?

Since the employers will have lawyers to defeat your claim, you must be prepared to show what efforts you have made. This means you need a written record. You need to keep copies of any letters or resumes written, and any newspaper or magazine advertisements for jobs that you pursue. Keep your unemployment documents, as those papers also contain a listing of employers that you contacted in your search for work.

It is important to keep a written record of all your efforts to get a new job. You can keep this record in a diary or log entries in a book or pad. If you use a computer, be sure to keep backup copies. Share your "mitigation" record with your lawyer. Your lawyer can review it to give advice about whether you are recording enough activities. For each entry in your record, include the following:

The date of each activity

The name and address of the prospective employer you contacted

The position you applied for

The names of people you met

The outcome - including whether you met the job requirements, got an interview, got an offer, leads on other jobs, or some other outcome

You can also record your registry with the state employment agency, the newspapers you read, and other efforts you make to get new employment.

5. What if I can't find an acceptable job?

If you do receive offers of another job, you do not have to accept just any job that is offered in order to meet your duty of mitigating your damages.

For example, if you were employed as a professional in a position that paid more than $50,000 a year and offered substantial benefits, you would not be obligated to take a job at minimum wage, or to take the first thing that comes along. Likewise, if the type of position you held is relatively common, we are not aware of any law that would require you to conduct a nationwide search for employment or take a job in a distant or undesirable geographic location.

If you have any questions about your obligations if you do obtain a job offer, it is good to consult your lawyer before making a decision that could damage your case.

6. After the experience I went through in my last job, I am ready to change fields. Am I required to look for work in the same field I was working in when I lost my job?

No. All the doctrine of mitigation requires is that you make a reasonable effort to find employment that provides "virtually identical promotional opportunities, compensation, job responsibilities, and status."

In some situations, you are more likely to be able to mitigate your damages if you pursue work in a different field, such as when you have been "blackballed," or the time you have spent away from work has caused your skills to erode.

7. I was holding down two jobs when I was let go. Do my earnings from my second job count to offset my damages?

If you were earning income from a second job prior to being let go, and you continued to earn the same amount of income from the second job after you were let go, that amount would not be included in the calculation of your earnings for the purpose of calculating damages.

However, if you used your second job to supplement your earnings after you were terminated, for example by taking on additional hours, then the additional income you earn will mitigate, or decrease the damages you are entitled to.

For example, if you earned $200 per week at a second job prior to being let go and were able to increase your earnings to $600 per week as a result of being let go, the damages you are entitled to will be decreased by $400 per week (current earnings of $600 minus the previous earnings of $200).

9. I went through severe harassment at work, which has made me unable to work. My doctor will not clear me to go back to work at all, since I have been diagnosed with post-traumatic stress disorder. Do I have to mitigate my damages?

One exception to the rule requiring you to mitigate your damages is when you become unable to work as a result of the employer's actions. However, the bar is set very high: otherwise, everyone who was wrongfully terminated would claim that he or she is too stressed out to work. If you have any questions about your obligations to mitigate your damages during a period when you are unable to work, you should consult a lawyer.

10. I want to use an alternative treatment like acupuncture to treat my injuries. Do alternative treatments count towards mitigation of damages?

If you choose to use alternative treatments like acupuncture or holistic remedies, you run the risk of a judge or jury considering your actions to be unreasonable and, therefore, not a proper mitigation of damages. To be safe you should receive mainstream medical treatment from licensed doctors.

O'Malley & Madden Weekly

O'Malley & Madden WeeklyWeekly

Topic of the Week

Family Medical Leave Act - What does it provide and are you protected?

The Family and Medical Leave Act (FMLA) was created to help employees balance the demands of the workplace with the needs of their families. The Act requires covered employers to provide reasonable unpaid leave to employees for certain family and medical

Blog of the Week

The #MeToo movement has helped thousands of sexual harassment victims get justice against their harassers. Unfortunately for Amy Swyear, the Seventh Circuit has yet to realize the effects of the movement.

Thought for the Week

"Employers are increasingly using non-disclosure agreements to force workers to sign away their rights to speak out about harassment. By prohibiting this practice, the EMPOWER Act will help ensure that everyone has a safe and dignified work environment."